Legal Library

HEIDI BECKER, MEDEA BENJAMIN, PHIL DONAHUE, MARK DUNLEA, ANNE GOEKE, ELIZABETH HORTON SCHEFF, RALPH NADER, JAMES O’KEEFE, SUSAN SARANDON, NADER 2000 PRIMARY COMMITTEE, INC., ASSOCIATION OF STATE GREEN PARTIES and GREEN PARTY USA,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.
Civil Action No.

 


MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION

The plaintiffs seek to enjoin the Federal Election Commission ("FEC") from enforcing or implementing, or relying in any way upon, the unlawful provisions in 11 C.F.R. §§ 110.13 and 114.4(f) ("Debate Regulations") that permit corporations to sponsor federal candidate debates.

This case is of enormous and immediate public interest. Since the Tillman Act of 1907, federal law has prohibited corporations from making contributions or expenditures in connection with campaigns for federal office. The FEC’s unlawful Debate Regulations have allowed business corporations to make unlimited contributions in the millions of dollars in connection with federal elections in direct contravention of that century-old prohibition. Plaintiffs seek this Court’s immediate intervention to prevent this continued flow of illegal corporate money during the current presidential campaign season.

Background.

The FEC’s unlawful Debate Regulations allow corporations to make illegal contributions to support partisan political campaign activity that lies at the core of the electoral process: presidential debates that showcase the candidates of the two major parties. The plaintiffs who have brought this suit represent a wide range of citizens who are aggrieved by the use of vast sums of corporate money to sponsor partisan presidential debates under the cover of the FEC’s Regulations. They include Ralph Nader, the leading third-party candidate for the presidency; his campaign; national and state political party organizations promoting Mr. Nader’s campaign; and voters who support his candidacy or are currently undecided. They seek to vindicate an essential precept of federal election law: that corporations may not use their vast financial resources to tilt the electoral playing field.

In November 1985, the respective chairmen of the Democratic and Republican National Committees, Paul G. Kirk, Jr. and Frank J. Fahrenkopf, Jr., agreed that the two major parties would work together to sponsor presidential debates. They proposed to replace the debates previously sponsored by the League of Women Voters with "nationally televised joint appearances conducted between the presidential and vice-presidential nominees of the two major political parties during general election campaigns." Jamin B. Raskin, The Debate Gerrymander, 77 Tex. L. Rev. 1943, 1982, n. 175 (June 1999), quoting "Joint Memorandum of Agreement of Presidential Candidate Joint Appearances" (Nov. 26, 1985) (on file with the Texas Law Review).

Fifteen months later, the Democratic and Republican Parties jointly announced the incorporation of the Commission on Presidential Debates ("CPD"), an organization controlled by the Democratic and Republican National Committees. They declared that the CPD is a "bipartisan" organization formed to implement joint sponsorship of general election debates by the national Democratic and Republican Committees "between their respective nominees." Id., n. 178, quoting "News from the Democratic and Republican National Committees" (Feb. 18, 1987) (on file with the Texas Law Review).

The CPD staged all of the presidential debates in 1988, 1992 and 1996 and the CPD is expected to stage all of the presidential debates this year. Affidavit of Theresa Amato ¶ 11. The first debate is scheduled for October 3, 2000 in Boston. The CPD’s debates do not include all ballot-qualified presidential candidates.

Under the unlawful cover of the FEC’s Debate Regulations, the CPD has solicited and raised millions of dollars from for-profit corporations to help it stage its presidential debates. In the past two presidential elections, corporate sponsors of the CPD’s debates have included Anheuser-Busch, AT&T, Atlantic Richfield, Ford Motor Company, IBM, J.P. Morgan & Co. and Philip Morris Companies, Inc. Amato Aff. ¶ 12.

On January 6, 2000, the CPD announced that Anheuser-Busch will serve as one of the national financial sponsors for its 2000 presidential debates, as well as the sole national financial sponsor of the CPD’s scheduled October 17, 2000, presidential debate in St. Louis, Missouri. Amato Aff. ¶ 13. Anheuser-Busch will reportedly pay $550,000 to underwrite the upcoming St. Louis debate.[1] Id.

These debates are highly partisan events. They serve as major political advertisements for the candidates invited to participate. The CPD’s debates are nationally televised and watched by tens of millions of American voters. Amato Aff. ¶ 14. In fact, the CPD’s debates have been the only nationally televised presidential debates in the last three general elections.

As third party presidential candidate Ross Perot proved in 1992, an appearance in the CPD/corporate-sponsored presidential debates contributes dramatically to the legitimacy and potential success of a candidate’s campaign. Prior to the first 1992 CPD presidential debate, Mr. Perot received 7% of the public’s support in national polls. Amato Aff. ¶ 15. Following the debates, Mr. Perot received roughly 19% of the popular vote in the general election. Id. As Mr. Perot’s experience demonstrated, these presidential debates are the major forum for campaign communication with the American electorate and confer a distinct imprimatur of legitimacy and electability upon the participants. As such, corporate sponsorship of the debates amounts to a direct and substantial contribution to those candidates who are allowed to participate.

Argument.

The plaintiffs are entitled to a preliminary injunction because they have shown that (1) they are likely to succeed on the merits of their claim; (2) they will suffer irreparable harm in the absence of the requested injunction; (3) the balance of equities favors the grant of an injunction; and (4) the public interest would be served by an injunction. Cablevision of Boston, Inc. v. Public Improvement Comm’n of the City of Boston, 184 F.3d 88, 95 (1st Cir. 1999); Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 673 (1st Cir. 1998).

I. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS BECAUSE THE FEC’S DEBATE REGULATIONS ARE IN EXCESS OF STATUTORY AUTHORITY.
  1. The Debate Regulations Are Inconsistent With The Plain Terms Of FECA.

    The Federal Election Campaign Act ("FECA") unambiguously provides that it is unlawful for "any corporation whatever … to make a contribution or expenditure in connection with any [federal] election." 2 U.S.C. § 441b(a). When it imposed this ban, Congress provided no exception of any kind for corporate contributions or expenditures in connection with candidate debates. Rather, Congress underscored its long-standing concern about the impact of corporate money on federal elections by restricting the direct use of corporate funds to internal communications or "nonpartisan registration and get-out-the-vote campaigns" aimed at the corporation’s own stockholders and management. 2 U.S.C. § 441b(b)(2)(A) & (B).[2] FECA provides no authority for the use of corporate funds to underwrite the most public events that occur during an election cycle: candidate debates. The FEC’s Debate Regulations should therefore be declared to be in excess of the FEC’s statutory authority or otherwise not in accordance with law, and set aside under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 706(2)(A) & (C).[3]

    The FEC has attempted to create a "safe harbor" for limitless corporate sponsorship of federal candidate debates that cannot be found anywhere on the map drawn by Congress. The FEC’s Debate Regulations provide that a nonprofit corporation "may stage candidate debates." 11 CFR § 110.13(a). When it does so, according to the FEC’s regulations, the staging organization not only may "use its own funds," but also may "accept funds donated by corporations" to defray the costs of staging the debates. 11 CFR § 114.4(f)(1). Completing the circle, the Debate Regulations provide that "[a] corporation … may donate funds" to a qualified debate staging organization. 11 CFR § 114.4(f)(3). The Debate Regulations impose no limits on the amounts of corporate money that may be used to stage candidate debates. [4]

    If a debate meets the FEC’s loose regulatory standards laid out in 11 CFR § 110.13, the funds used by a non-profit corporation staging the debate have been deemed by the FEC to be exempt from the "contributions" and "expenditures" regulated by FECA. See 11 CFR §§ 100.7(b)(21) & 100.8(b)(23) (exempting "funds used to defray costs in staging candidate debates"). The Congressional definitions of both "contributions" and "expenditures" in FECA, in contrast, do not exempt funds used for candidate debates. See 2 U.S.C. §§ 431(8)(B) ("contribution") & 431(9)(B) ("expenditure"). The FEC’s regulations also purport to exempt from the corporate "contributions" and "expenditures" proscribed by § 441b(a) "any activity which is specifically permitted by part 14" of the FEC’s regulations, which authorizes corporate donations to debate staging organizations. See 11 CFR §§ 114.1(a)(2)(x), 114.2(b) & 114.4(f)(3). This exemption is flatly inconsistent with the tightly restricted use of corporate funds permitted by § 441b(b)(2).

    The FEC has itself recognized that absent the regulatory "safe harbor" it has attempted to create, the donation of corporate funds to a debate staging organization — and the staging organization’s use of its own corporate money — would constitute a prohibited contribution to every candidate participating in the debate. The FEC’s own General Counsel concluded on this basis that there was reason to believe that the CPD had violated § 441b(a) in 1996. The General Counsel reasoned that because the selection criteria used by the CPD to determine who could participate in the 1996 presidential debates did not comply with 11 CFR § 110.13(c), "CPD [was] not entitled to the protection of the safe harbor created by 11 CFR §§ 100.7(b)(21) and 110.13(c)." General Counsel’s First Report, In the Matter of Commission on Presidential Debates, MURs 4451 and 4473 (Feb. 25, 1998) at 21. [5] While the FEC itself rejected the view that CPD’s selection criteria were unlawful, the FEC accepted an essential premise of the General Counsel’s analysis — that absent compliance with the Debate Regulations, corporate funding of candidate debates would be a "contribution" to the participating candidates regulated by FECA. The FEC acknowledged:

    If a corporation staged a debate that was not in accordance with 11 CFR § 110.13, then staging the debate would not be an activity "specifically permitted" by 11 CFR § 100.7(b), but instead would constitute a contribution to any participating candidate under the Commission’s regulations.

    FEC Statement of Reasons, In the Matter of Commission on Presidential Debates (April 6, 1998) at 4.[6]

    The central question before the Court is whether FECA authorized the FEC to create a "safe harbor" for corporate donations in its Debate Regulations. The answer is "no." FECA’s proscription of the use of corporate money "in connection with" federal elections does not provide any exception for the use of corporate funds to stage federal candidate debates. Because the Debate Regulations conflict with the explicit language of § 441b(a) and find no legislative justification elsewhere, they should be vacated. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress").

  2. The FEC’s Justification For Its Rule Has No Merit.

    In the past, the FEC has claimed that the donation of corporate funds to underwrite candidate debates is permitted by FECA because Congress exempted funds used for "nonpartisan activity designed to encourage individuals to vote or to register to vote" from the general definition of "expenditure" in the statute. See 2 U.S.C. § 431(9)(B)(ii).[7] When it promulgated the Debate Regulations, the FEC asserted that Congress had thus expressed an intent in FECA "to permit corporations and labor organizations to participate in nonpartisan activity aimed at voter participation where that activity was undertaken in conjunction with a nonpartisan nonprofit organization." 44 Fed. Reg. 76734, 76736 (Dec. 27, 1979). This principle cannot be found anywhere in FECA itself. In fact, when Congress legislated more specific rules governing the use of corporate funds, it narrowed this exemption to "nonpartisan registration and get-out-the vote campaigns" aimed at the corporation’s own "shareholders and executive or administrative personnel and their families." 2 U.S.C. § 441b(b)(2). Because "it is a basic principle of statutory construction that a specific statute… controls over a general provision… particularly when the two are interrelated and closely positioned," the narrow exemption set out in § 441b(b)(2), rather than the broad exemption in § 431(a)(B)(ii), should be controlling on the issue of corporate expenditures for get-out-the-vote activities. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (holding that a general exemption in the federal income tax statute was not applicable to the plaintiff hospital services organization because the income tax statute also set out specific exemptions relating to hospital service organizations and the plaintiff did not meet the criteria of the specific exemption, even though the plaintiff had met the criteria of the general exemption).

    By its terms, FECA does not authorize the use of corporate money for public voter registration and get-out-the-vote activities even if they are nonpartisan. The FEC points, however, to legislative history that suggests an intent, nowhere reflected in the language of the statute, that the limiting language of § 441b(b)(2) be read together with the general exemption in § 431(9)(B)(ii):

    to permit corporations to take part in nonpartisan registration and get-out-the-vote activities that are not restricted to stockholders and executive or administrative personnel, if such activities are jointly sponsored by the corporation and an organization that does not endorse candidates and are conducted by that organization.

    44 Fed. Reg. 76735, quoting H.R. Rep. No. 1057, 94th Cong., 2d Sess. 63-64 (1976).[8] The FEC divines from this legislative history the astounding proposition that FECA somehow expressly indicates an intent to allow corporations to contribute limitless funds to nonpartisan nonprofit organizations for use in "nonpartisan activity aimed at encouraging voter participation." 44 Fed. Reg. 76736. The discontinuity between the words Congress used and the legislative history the FEC relies upon should give the Court pause. As Justice Scalia has pointedly observed, "[w]e are governed by laws, not by the intentions of legislators. . . . If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history." Conroy v. Aniskoff, 507 U.S. 511, 518-19 (1993) (Scalia, J., concurring).

    Notably, the FEC has not claimed that FECA itself — or even its legislative history — expresses an intent to allow corporate funds to be used for candidate debates. Instead, the FEC simply proclaims that "[t]he educational purpose of nonpartisan public candidate debates is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns." (emphasis added). 44 Fed. Reg. 76734. On the basis of this alleged "similarity," the FEC claims legal authority for its Debate Regulations.

    Even if candidate debates may "stimulate voter interest and hence ‘encourage individuals to register to vote or to vote,’" as the FEC asserts, 44 Fed. Reg. 76736, they cannot fairly be characterized as "designed to encourage individuals to vote or to register to vote," within the meaning of 2 U.S.C. § 431(9)(B)(ii). The Conference Committee Report that the FEC has relied upon gives as its example of get-out-the-vote activities "assisting eligible voters to register and to get to the polls." H.R. Rep. No. 1057, 9th Cong., 2d Sess. 63 (1976). That is a far cry from sponsoring a nationally-televised debate. The FEC has not pointed to any reference to corporate funding of candidate debates in the Committee Report or elsewhere in FECA’s legislative history.

    More importantly, the Debate Regulations do not provide that the debates will be "nonpartisan" within the meaning of FECA. The FEC has simply asserted that by restricting staging organizations to certain nonprofit corporations, it has provided "sufficient safeguards to insure nonpartisanship." 44 Fed. Reg. at 76736. This claim has no foundation. The Supreme Court has recognized that nonprofits receiving money from corporations can "serve as a conduit for the type of direct spending that creates a threat to the political market place." Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 664 (1990). In Austin, the Court held that greater restrictions could be placed on the Michigan Chamber of Commerce’s right to make political contributions than could be placed on nonprofits that did not receive corporate money. Id. The Court explicitly contrasted the Chamber of Commerce, which received more than 75% of its funding from business corporations, with nonprofits that received no money from corporations. Id. The Debate Regulations fail to recognize this important distinction and thus do not provide adequate safeguards of nonpartisanship.[9]

    By comparison, in its statement of justifications for the Debate Regulations, the FEC recited:

    It is the Commission’s belief that sufficient safeguards as to nonpartisanship of debates staged by broadcasters are set forth in the Communications Act, most particularly 47 U.S.C. § 315.

    44 Fed. Reg. 76735. In contrast to the FEC’s own Regulations, however, § 315 mandates "equal opportunities" for all "legally qualified" candidates.[10] The Debate Regulations contain no comparable guaranty that candidate debates will be nonpartisan. In fact, recent presidential and vice-presidential debates have been controlled by the CPD, an avowedly bipartisan, not nonpartisan, organization created to promote the interests of the two major political parties, that will stage the debates this fall. The Federal Courts have recognized that "nonpartisan" and "bipartisan" are separate and distinct concepts. See, e.g., Rigby v. Roadway Exp., Inc., 680 F.2d 342, 344 (5th Cir. 1982) ("The Teamsters grievance panel is bipartisan, rather than tripartite or nonpartisan") (emphasis added); see also Fulani v. Brady, 935 F.2d 1324, 1336-37 (D.C. Cir. 1991) (Mikva, C.J., dissenting) (arguing that plaintiff’s claim that CPD was bipartisan rather than nonpartisan should be heard because government "must not abandon its posture of nonpartisanship"). The CPD cannot credibly claim to be nonpartisan, and its central role in the presidential debates — fostered by corporate contributions — shows that the FEC’s Debate Regulations cannot be reconciled with FECA. The FEC’s purported justification for its Debate Regulations must be rejected, and the Regulations set aside.

  3. Vacating The Debate Regulations Will Further The Fundamental Goals of FECA.

    The prohibition of corporate contributions in connection with campaigns for federal office is a major pillar of FECA’s statutory protection of the legitimacy of the electoral system. See United States v. International Union United Auto., Aircraft and Agric. Implement Workers of America, (UAW-CIO), 352 U.S. 567, 570 (1957). In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ("MCFL"), the Supreme Court "adopted the ‘underlying theory’ of FECA" that corporations should not be permitted to divert their general treasuries "to political purposes." Austin, 494 U.S. at 670-71 (Brennan, J., concurring) (discussing MCFL). When reviewing both FECA and analogous state laws, the Supreme Court has consistently recognized "the compelling governmental interest in preventing corruption [which] support[s] the restriction of the influence of political war chests funneled through the corporate form." Austin, 494 U.S. at 659 (quoting FEC v. National Conservative Political Action Committee, 470 U.S. 480, 500-501 (1985) ("NCPAC")); see also FEC v. National Right to Work Committee, 459 U.S. 197, 209-10 (1982) ("NRWC") (FECA "reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation," indeed "it is the potential for [disproportionate political] influence that demands regulation"). By permitting limitless corporate funding of candidate debates, the FEC’s Debate Regulations clearly violate this bedrock principle.

    A consistent line of Supreme Court cases has recognized that "state-created advantages" — such as "limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets" — "not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use ‘resources amassed in the economic marketplace’ to obtain ‘an unfair advantage in the political marketplace.’" Austin, 494 U.S. at 658-59 (quoting MCFL, 479 U.S. at 257); see also Mariani v. U.S., 212 F.3d 761, 2000 WL 637394 at *10-11 (3rd Cir. 2000) (en banc); Clifton v. FEC, 114 F.3d 1309, 1312 (1st Cir. 1997); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 645-46 (6th Cir. 1997); Athens Lumber Co., Inc v. FEC, 718 F.2d 363, 363 (11th Cir. 1983) (en banc). The Supreme Court has explained why the political advantage of corporations is unfair:

    The resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.

    MCFL, 479 U.S. at 258; see also Austin, 494 U.S. at 659.

    In carving out an extremely narrow exception to the prohibitions on corporate funding carried forward by FECA, the MCFL Court enumerated three "essential" characteristics that a non-profit corporation must possess in order to be exempted from § 441b’s ban on corporate expenditures. MCFL, 479 U.S. at 263-64 (formed to promote political ideas; without shareholders or members with claims to corporate assets; and independent from business interests); see also Austin, 494 U.S. at 661-62. The non-profit "staging" organizations authorized by the Debate Regulations clearly lack the most important of these essential characteristics, namely "independence from the influence of business corporations." Austin, 494 U.S. 664. The Court allowed partisan spending by MCFL, a non-profit corporation, only because it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." MCFL 479 U.S. at 264. In striking contrast, the FEC’s Debate Regulations allow business corporations to circumvent the prohibitions of § 441b by "funneling money through" an organization such as the CPD, which "serve[s] as a conduit for corporate political spending." Austin, 494 U.S. at 664. Notably, in prior litigation, the FEC has taken the position that only an absolute policy against accepting contributions from business corporations and labor unions would guarantee that a non-profit group would not abuse the corporate form in partisan political spending — a position upheld by the Courts of Appeals in this and other circuits. Faucher v. FEC, 743 F. Supp. 64, 69 (D. Me. 1990), aff’d, 928 F.2d 468 (1st Cir.), cert. denied, 502 U.S. 820 (1991); see also FEC v. NRA Political Victory Fund, 778 F. Supp. 62, 64 (D.D.C. 1991), rev’d on other grounds, 6 F.3d 821 (D.C. Cir. 1993), cert. dismissed, 513 U.S. 88 (1994).

  4. The First Circuit Has Not Hesitated To Strike Down FEC Regulations That Are In Excess Of The FEC’s Authority Under FECA.

    The First Circuit has not shied away from the task of invalidating FEC regulations that are unauthorized by or conflict with FECA. See, e.g., Clifton, 114 F.3d 1309; Faucher, 928 F.2d 468. In Faucher, the First Circuit struck down an FEC regulation governing the publication of voter guides by corporations because the regulation prohibited issue advocacy. Id. at 472. The First Circuit reasoned that the Supreme Court, in Buckley v. Valeo, had held that FECA does not prohibit issue advocacy. Id. at 470. Thus, the First Circuit held that 11 C.F.R. § 114.4(b)(5), which allowed corporations to publish voter guides only if they did not take a position on issues, was invalid because it violated 2 U.S.C. § 441b as interpreted by the Buckley Court. Id. at 472.

    Similarly, in Clifton, the First Circuit struck down FEC regulations dealing with voter guides and voting record publications. 114 F.3d at 1312. The FEC regulations barred all non-written contact with candidates regarding both the preparation and distribution of voter guides and their contents. Id. Thus, a corporation preparing a voter guide could not even telephone a candidate to ask what the candidate’s position on a particular issue was. The First Circuit held that this rule improperly exceeded the scope of FECA’s ban on corporate "contributions" or "expenditures." Id.

    The First Circuit has observed that in implementing FECA, "[t]he FEC can construe terms but it cannot rewrite the dictionary." Id. That is, unfortunately, what the FEC has tried to do in justifying its Debate Regulations. This Court should determine, as a matter of law, that the FEC’s Debate Regulations are unauthorized by FECA and therefore must be set aside under the APA.

II. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE UNLAWFUL DEBATE REGULATIONS REMAIN IN FORCE.
  1. The Potential Corruption And Actual Distortion Of The Electoral Process Allowed By The Debate Regulations Will Cause Imminent, Irreparable Harm To All Plaintiffs.

    If the FEC’s Debate Regulations are allowed to stand through the upcoming election cycle, the illegal infusion of corporate money into partisan electoral activity will directly and substantially harm each plaintiff in this suit. By allowing corporate sponsorship of presidential debates the FEC has opened the spigot of partisan corporate spending that FECA was designed to close. The injuries that flow from abrogation of a prophylactic measure such as § 441b are self-evident. Major-party candidates will benefit from what amounts to hours of prime-time, corporate-sponsored television advertising. This will tilt the electoral playing field to the detriment of independent and third party candidates, their parties, their supporters, and undecided voters who need access to the full range of electoral discourse. Illegal funds already pledged to support the fall debates raise the immediate possibility and perception of disproportionate influence and corruption. The prospect of likely exclusion from the debates, as discussed in numerous recent news reports, already harms candidates like Mr. Nader, who are pre-judged as marginal, non-competitive, and unelectable.[11]

    For over nine decades, Congress has forbidden corporate spending in connection with campaigns for federal office specifically to prevent grave injury to voters, political parties, the political process, and the integrity of government itself. Echoing Congress’ assessment of the injury caused by partisan corporate spending, the Supreme Court has decried the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas." Austin, 494 U.S. at 660; see also NCPAC, 470 U.S. at 500 (affirming "a congressional determination of the need for a prophylactic rule where the evil of potential corruption had long been recognized"). The Supreme Court has also observed that

    In our tradition, candidate debates are of exceptional significance in the electoral process. "It is of particular importance that candidates have the opportunity to make their views known so that the electorate may intelligently evaluate the candidate’s personal qualities and their positions on vital public issues before choosing them on election day." . . . Deliberation on the positions and qualifications of candidates is integral to our system of government, and electoral speech may have its most profound and widespread impact when it is disseminated through televised debates. A majority of the population cites television as its primary source of election information, and debates are regarded as the only occasion during a campaign when the attention of a large portion of the American public is focused on the election, as well as the only campaign information format which potentially offers sufficient time to explore issues and policies in depth in a neutral forum.

    Arkansas Educational Television Comm’n. v. Forbes, 523 U.S. 666, 675-676 (1998) (citations omitted and emphasis added). The FEC’s illegal Debate Regulations harm all plaintiffs by allowing corporate money to degrade the neutrality of the debates and the political process, tilt the electoral playing field, and introduce the corrosive appearance of corruption into this country’s most important election.

    Harms to the fairness and integrity of an election cannot be remedied after the election has passed. See Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 883 (3rd Cir. 1997) (in a ballot access case, holding that "[i]f the plaintiffs lack an adequate opportunity to gain placement on the ballot in this year’s election, this infringement on their rights cannot be alleviated after the election") (emphasis added); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978); Devine v. Rhode Island, 827 F. Supp. 852 (D.R.I. 1993); see also Lucas v. Townsend, 486 U.S. 1301 (1988) (individual Justice grants injunction barring bond referendum election). If this Court does not provide swift relief, plaintiffs’ injuries will be irreparable because the campaign season will be over. The imminent harms caused by the FEC’s illegal Debate Regulations warrant immediate preliminary injunctive relief.

  2. Ralph Nader, His Supporters, The Green Parties, And Their Members Will Suffer Irreparable Harm If The Injunction Is Not Granted.

    In addition to the general corruption and distortion of the political process referenced above, the use of illegal corporate contributions to pay for the debates will cause irreparable harm to Ralph Nader, his supporters, the supporters of the Green Parties, and the Green Parties themselves. These plaintiffs have a right to run and support a campaign for public office in an atmosphere that is free from the distorting influence of partisan corporate contributions. Hooks, 121 F.3d at 883 ("Plaintiffs’ voting and associational rights are burdened by their inability to nominate, support and vote for candidates who represent their beliefs"). The Green Parties and their members have a right to engage in party building activities and communicate with the electorate free from the disproportionate influence of partisan, corporate-sponsored advertising. By allowing corporate money to distort the electoral process, the FEC assists corporations and the major parties in stifling the voice of alternative parties and stunting the opportunities of alternative candidates such as Mr. Nader.

    Inclusion in the CPD/corporate-sponsored debates confers a decisive imprimatur of electability and acceptability on the invitees. Amato Aff. ¶ 14-15. Because the CPD/corporate-sponsored debates exclude all but select candidates, those events inevitably amount to powerful advertising on behalf of the invited candidates. Amato Aff. ¶ 16; Affidavit of James O’Keefe ¶ 5. Candidates who are not invited to participate would have to spend many millions of dollars to secure comparable television advertising; achieving the same imprimatur of "objective" electability, if possible, would cost untold millions more. Amato Aff. ¶ 16.

    The FEC’s Debate Regulations have also helped the CPD debates to become the only game in town. The illegal presence of corporate money cements the exclusive sponsorship position occupied by the CPD to the detriment of other forums of presidential debate. Alternative debate sponsors are directly discouraged by the cost of mounting and televising alternative debates in "competition" with the debates already staged with substantial corporate support. Amato Aff. ¶ 7. In sum, the FEC’s Debate Regulations have allowed corporate money to usurp and fortify the primary forum of presidential campaign information, providing select candidates a direct financial benefit in the form of prolonged, prime-time national television exposure. This benefit to major party debate participants erects a huge financial barrier in the path of independent and third-party candidates.

    "[A] burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment." Anderson v. Celebrezze, 460 U.S. 780, 793-794 (1983); see also Brown v. Hartlage, 456 U.S. 45, 53 (1982) ("[First Amendment] guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office") (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72 (1971)). The FEC’s Debate Regulations allow corporate money to sponsor prominent campaign activity on behalf of the major parties, thereby placing a substantial burden on Mr. Nader and other independent candidates to find an alternate forum to communicate their views. [12] The Supreme Court has long recognized the "real and appreciable impact on the exercise of the franchise" that voters face under an electoral system which disfavors certain candidates on the basis of wealth. Bullock v. Carter, 405 U.S. 134, 144 (1972) (invalidating candidate filing fees); Lubin v. Panish, 415 U.S. 709 (1974) (same). By allowing direct corporate spending on partisan activities, the FEC exacerbates the considerable, exclusionary damage that aggregations of corporate wealth visit upon the electoral process. To the extent that Mr. Nader cannot afford to mount alternative debates and advertisements in order to spread his competing electoral message, the FEC’s Debate Regulations substantially injure his and his supporters’ rights to mount a campaign for public office on an even playing field.

    For over three decades, the U.S. Supreme Court "has recognized the constitutional right of citizens to create and develop new political parties"–a right "derive[d] from the First and Fourteenth Amendments." Norman v. Reed, 502 U.S. 279, 288 (1992) (citing Anderson, 460 U.S. at 794); Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). "The independent expression of a political party’s views is ‘core’ First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees." Colorado Republican Federal Campaign Comm’n v. FEC, 518 U.S. 604, 609 (1996) (plurality opinion). The right to "broaden the base of public participation in and support for its activities" is a core element of any party’s associational rights. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986). The Supreme Court has also noted that "the primary values of the First Amendment . . . are served when election campaigns are not monopolized by the existing political parties." Anderson, 460 U.S. at 794. The FEC’s Debate Regulations, which allow corporate money to sponsor powerful advertisements for the two major-party candidates, place a heavy and unequal burden on the plaintiff Green Parties that will make it harder for them to build the Green Party and gain support for Green Party candidates such as Mr. Nader. Because of the FEC’s regulations, Nader and the Green Parties will have no hope of preventing the Democratic and Republican parties from monopolizing the presidential campaign. Anderson, 460 U.S. at 794.

    Lastly, if Mr. Nader is invited to join in the debates, he will be forced into an untenable Hobson’s choice: either he participates in an event funded by illegal corporate contributions, or he passes up his best opportunity to communicate with the American public. Given Mr. Nader’s personal and party-platform commitment to fighting corporate fraud, waste, and abuse, he would in effect be forced to violate his own platform in order to communicate that platform to the electorate. Amato Aff. ¶ 18. The FEC’s debate regulations thus substantially impair Mr. Nader’s and his supporters’ First and Fourteenth Amendment rights.

  3. Undecided Voters Will Suffer Irreparable Harm If The Injunction Is Not Granted.

    In addition to the general corruption and distortion of the political process referenced above, the use of illegal corporate contributions to pay for the debates will cause particular irreparable harm to Heidi Becker and other undecided voters. Affidavit of Heidi Becker Aff. ¶¶ 3-6. In order to make a responsible, fully informed choice in the upcoming presidential election, Ms. Becker and other undecided voters must have a secure opportunity to evaluate all presidential candidates in an atmosphere that is free from the disproportionate influence of illegal corporate contributions. By allowing corporate money to support partisan activity, the FEC assists the Democratic and Republican parties in tilting the electoral playing field to the detriment of third-party and independent candidates, depriving Ms. Becker and others like her of an unbiased opportunity to consider alternative candidates.

    In addition to seriously undermining plaintiff Becker’s access to information about alternatives candidates, the FEC’s illegal Debate Regulations substantially harm undecided voters by allowing the primary forum for candidate communication to be infused with corrosive sums of corporate money. This marriage of politics and corporate wealth, which introduces the potential for and appearance of corruption, erodes the public’s willingness to participate in politics. Becker Aff. ¶ 5; see also O’Keefe Aff. ¶ 5. Affirming the importance of preventing actual or perceived corruption in federal elections, the U.S. Supreme Court recently observed that the perception of corruption "inherent in a regime of large individual financial contributions" could "jeopardize the willingness of voters to take part in democratic governance." Nixon v. Shrink Missouri Government, 120 S.Ct. 897, 905 (2000) (upholding the constitutionality of Missouri’s campaign contribution limits); see also C.S.C. v. Letter Carriers, 413 U.S. 548, 565 (1973) (avoiding the appearance of improper influence is "critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent"). Regardless of the extent to which corporate sponsors directly influence the form and composition of the presidential debates, the open spigot of corporate funding gives the subtle but undeniable appearance of powerful corporate influence. Undecided voters like plaintiff Becker have been and will be harmed by the FEC’s Debate Regulations because they authorize corporate influence over political campaigns to the detriment of the individual voter.

    The FEC’s illegal Debate Regulations also threaten the exercise of plaintiff Becker’s fundamental rights. The Supreme Court has repeatedly recognized that the First Amendment protects the right to receive as well as the right to disseminate information and ideas. First Nat’l Bank of Boston v. Bellotti, 435 U.S. at 792; Virginia Bd. of Pharmacy v. Virginia Consumer Council, 425 U.S. 748, 757 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). This right is even stronger when the speech in question is political speech.

    [T]he First Amendment is not in its primary and most significant aspect a grant by the Constitution to the citizens of individual rights of self-expression but on the contrary reflects the total retention by the people as sovereign to themselves of the right to free and open debate of political questions….

    Mandel v. Mitchell, 325 F.Supp. 620, 631-32 (E.D.N.Y. 1971), rev’d on other grounds, 408 U.S. 753 (1972); see also CBS, Inc. v. Federal Communications Comm’n, 629 F.2d 1, 24 (D.C. Cir. 1980) ("The public’s right to be informed is nowhere stronger than in the area of elections. And, no speech is more protected than political speech"); Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 255, quoted in Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 627-28 (1976) (Brennan, J., concurring in part).

    By setting up a system that condones and encourages corporate sponsorship of candidate debates, the FEC violates the plaintiffs’ First Amendment "right to hear" vital political discussion free from the taint of the disproportionate influence of illegal corporate-sponsored advertising. When such a deprivation of a constitutional right is the subject of a preliminary injunction, there is a general presumption that no further showing of irreparable injury is necessary. Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981) ("It is well established that the loss of First Amendment freedoms constitutes irreparable injury"); 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2948.1 at 161 (1995) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary").

III. THE PUBLIC INTEREST WILL BE SERVED BY THE ISSUANCE OF AN INJUNCTION.

The public has an interest in eliminating the corrosive and distorting influence of corporate money. In a free, democratic society, it is critical that the electoral playing field not be tilted by aggregations of wealth. Austin, 494 U.S. at 652. Justice Holmes declared that "the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market…." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). The FEC’s Debate Regulations, which allow illegal corporate contributions to support partisan political activity in the form of debates, ensure that the "trade in ideas" will not take place in a competitive market. The regulations are thus incompatible with our "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open …." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The First Amendment was designed to secure "the widest possible dissemination of information from diverse and antagonistic sources…," Associated Press v. United States, 326 U.S. 1, 20 (1945), and to "assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). An electoral process that is contaminated by the influence of illegal corporate contributions can hardly be said to embrace the ideal of an "unfettered interchange of ideas."

The public interest "clearly favors the protection of constitutional rights, including the voting and associational rights of alternative political parties, their candidates and their political supporters." Hooks, 121 F.3d at 883. In the present case, the public interest is also burdened by the way in which the debate regulations all but preclude "the possibility of independent or alternative party candidates emerging in response to disaffection with the nominees of the major parties." Id. at 880, citing Anderson. The Court should issue the requested injunction to protect these public interests.

IV. A BALANCING OF THE HARMS WEIGHS DECISIVELY IN FAVOR OF THE PLAINTIFFS.

There are no countervailing harms of any weight to be balanced by the Court. The FEC does not have any statutory authority to continue to enforce, implement or rely upon its unlawful Debate Regulations. Similarly, corporations do not have any right under federal law to make illegal contributions in connection with a federal election, nor does the CPD have any right to solicit and receive such contributions. The requested injunction will prevent the FEC from continuing to allow the CPD and its corporate sponsors to violate federal law. There is no legally-cognizable harm that can result from such an injunction.

 

Conclusion.

For the foregoing reasons, the Court should grant plaintiffs’ motion for a preliminary injunction.

By their attorneys,

 

/s/John C. Bonifaz (BBO #562478)
/s/Gregory G. Luke (BBO #600204)
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, MA 02108-3190
(617) 368-9100

/s/Scott P. Lewis (BBO #298740)
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
(617) 573-0100

Of counsel:
Jamin B. Raskin
Professor of Law
American University
Washington College of Law
4801 Massachusetts Avenue, NW
Washington, D.C. 20016
(202) 274-4011

FOOTNOTES

[1] Notably, on Friday June 14, 2000, before this lawsuit was filed, the CPD had posted on its website a list of the sponsors of its 2000 debates. As of Tuesday June 20, 2000, the day after this suit was filed, that list had been removed. Amato Aff. ¶ 13.

[2] Section 441b(b)(2)(C) allows corporations to make expenditures for separate segregated funds to be used for political purposes. This third exemption is not pertinent to the issues before the Court, which involve the use of corporate funds drawn from their general treasuries.

[3] When former presidential candidate Ross Perot challenged the Debate Regulations as ultra vires in 1996, the United States Court of Appeals for the District of Columbia Circuit left open the question of whether the FEC lacked the authority to promulgate 11 C.F.R. §§ 110.13 and 114.4(f), inviting a suit, such as this one, under the APA. See Perot v. Federal Election Comm'n., 97 F.3d 553, 560 (D.C. Cir. 1996) (an action challenging regulations implementing FECA "should be brought under the judicial review provisions of the [APA]"). Because Mr. Perot's claim was not properly brought under the APA, the D.C. Circuit remanded the claim to the district court for dismissal without prejudice. Id. at 561.

[4] A copy of the Debate Regulations - found at 11 CFR §§ 110.13 and 114.4(f) - is attached to this brief at Tab A.

[5] A copy of the FEC General Counsel's First Report is attached to this brief at Tab B.

[6] A copy of the FEC's Statement of Reasons is attached to this brief at Tab C.

[7] Congress did not, however, exempt such activity from its definition of "contribution." See 2 U.S.C. § 431(8). Instead, by referencing § 441b(b) in that definition, the only corporate contributions Congress chose to exempt are those made in connection with activities aimed at a corporation's own "shareholders and executive or administrative personnel and their families," not at the general public. 2 U.S.C. § 431(8)(B)(vi).

[8] The legislative history refers to §§ 301(f)(4)(B) and 321(b)(2)(B) of FECA, which have been subsequently recodified as §§ 431(9)(B)(ii) and 441b(b)(2).

[9] Although Austin involved state election laws, federal courts have looked to it for guidance in interpreting analogous provisions in FECA. See, e.g., Mariani v. United States, 2000 WL 637394, *10-11 (3rd Cir. 2000) (en banc).

[10] The FEC itself took this position in 1976 when it required the League of Women Voters to include all legally qualified candidates in the League's debates. Raskin, The Debate Gerrymander, 77 TEX L. REV. at 1992. It was only when the FEC later adopted its Debate Regulations that the agency abandoned its standard of nonpartisanship.

[11] See, e.g., Laura Meckler, Associated Press, Debating Who Gets To Debate, N.Y. TIMES, June 22, 2000, at A9; David M. Shribman, Debates Invite Trouble Early, THE BOSTON GLOBE, June 27, 2000, at A5; Presidential Candidate Nader Vows to Fight for Environment, Education, Health Care, Cable News Network (Posted June 24, 2000) .

[12] In a recent Supreme Court decision, Justice Breyer discussed the importance of democratizing the "influence that money may bring to bear upon the electoral process" and of providing an equally effective voice to all citizens. Nixon v. Shrink Missouri Government, 120 S.Ct. 897, 911 (2000) (upholding the constitutionality of Missouri's campaign contribution limits) (Breyer, J., concurring).

Dated: June 29, 2000